Filmana Pty Ltd v Brisbane City Council

[2011] QPEC 82

[2011] QPEC 82

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 618 of 2010

FILMANA PTY LTD  (ACN 080 055 429)	Appellant
and
BRISBANE CITY COUNCIL	Respondent
and
KAY McINNES	Co-Respondent by election

BRISBANE

..DATE 02/05/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 350

"Consent order" allowing developer appeal on basis of "minor change" to proposal

HIS HONOUR:  The court makes an order in terms of the initialled draft which allows this developer appeal by an outcome which approves a change to development application.

It's necessary for the court to be satisfied that the changes made are no more than minor change if the matter is to be permitted to proceed in this way. The relevant provision is section 4.4.1.52(2)(b) of the Integrated Planning Act 1997, however, the Sustainable Planning Act 2009 by sections 821 and 350 has the consequence that it's the last mentioned provision that provides the relevant test.

...

HIS HONOUR:  The development application was impact assessable so there are no implications by way of a change in the type of assessment nor is there really any new assessable development.  There's no question of additional referral agencies having involvement.  The changes made are identified in Mr Dang's affidavit and can clearly be understood by reference to the plans attached.

Ms Thompson has, for the Court's convenience, tendered as Exhibit 1 copies of them with the changed plan marked up to illustrate the differences.  There is to be an increase in the height of an acoustic fence on the southern boundary of the property to protect inhabitants from noise and nuisance from the established shopping centre next door.
The driveway on the northern side of the property from Gailey Road is to be improved by the establishment of in and out lanes.  The fence adjacent to that is to be an improved fence offering acoustic benefits which ought to do something to protect the amenity of the residents of Gailey Court which is the development next door.

It's in the interest of residents there that Ms McInnes, the co-respondent by election, appears.  There's a set back of the acoustic fence on the frontage of the property at Gailey Road by a couple of metres and additional landscaping provided.

There's a minor truncation of the building to accommodate driveway changes.  From any point of view but more relevantly from the point of view of the sections that are applicable the change is minor.  What occurs renders the development tolerable from the point of view of the other parties and the court accordingly makes an order in terms of the initialled draft.

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